The economic autonomy of the franchisee, an essential requirement of the franchising relationship, is not compromised by the presence of coordination between the franchisor and the franchisee, provided that such coordination is physiological and does not result in control that is so invasive and pervasive as to completely nullify the franchisee’s entrepreneurial freedom. Coordination is an essential feature of franchising and is the reason why a person decides to join the network, benefiting from the franchisor’s know-how and business organization.
The franchisee’s obligation to purchase minimum quantities of products and certain items for reasons of network uniformity, when contractually agreed and accompanied by the possibility of making independent choices in compliance with the minimum conditions imposed, does not constitute a violation of economic autonomy.
The validity of the franchising agreement is not impaired by the mere fact that the franchisor adopts commercial policies that may entail risks for the franchisee, as the latter cannot hold the franchisor liable for the negative results of the commercial activity in the absence of evidence of specific breaches or financial commitments undertaken by the franchisor.
The franchising agreement concerns the granting to the affiliate of a set of industrial or intellectual property rights, which may relate to one or more of the profiles listed in the sector regulations, without necessarily having to cumulatively cover all aspects regulated by law. More specifically, in a franchising agreement, the absence of a detailed specification of know-how does not automatically render the agreement null and void when this element does not constitute, in the intentions of the parties, a necessary and essential component of the agreement.
Article by VENTURELLO E BOTTARINI, AVVOCATI (Italy)
